Nejad v Minister for Immigration and Multicultural Affairs

[2000] FCA 741

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs [2000] FCA 741

FARID SEDAGHAT NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 34 OF 2000

SPENDER, LINDGREN AND MADGWICK JJ
31 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 34 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FARID SEDAGHAT NEJAD Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SPENDER, LINDGREN AND MADGWICK JJ
DATE OF ORDER:	31 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 34 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FARID SEDAGHAT NEJAD Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SPENDER, LINDGREN AND MADGWICK JJ
DATE:	31 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J:

Introduction

1. The appellant appeals from a judgment of a Judge of the Court dismissing his application for review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT had decided that it was not satisfied that the appellant was a refugee and it affirmed a decision of a delegate of the respondent (respectively “the Delegate” and “the Minister”) to refuse him a protection visa. 

2. Section 29 of Migration Act 1958 (Cth) (“the Act”) provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

   (a)travel to and enter Australia;

   (b)remain in Australia.

   Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act. It is not in dispute that the Minister delegated all necessary powers to the Delegate.

3. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  

4. Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The appellant’s case before the RRT had been that he was outside the country of his nationality, Iran, and was unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion.

   Procedural background

7. The appellant arrived in Australia on 23 May 1999.  By an application bearing date 24 May 1999, apparently signed on 28 May 1999 and lodged on 2 June 1999, he applied for a protection visa (visa sub-class 866). The Delegate refused the application on 17 June 1999. On 18 June 1999, the appellant applied to the RRT for review of the Delegate’s decision. The RRT conducted a hearing on 2 August 1999. On 16 August 1999, it affirmed the Delegate’s decision. The appellant’s application filed in this Court on 9 September 1999 for review of the RRT’s decision specified no grounds.  All relevant parts of the form were filled in “Details will be sent later”. 

8. The application for review was dismissed by the primary judge on 9 December 1999.  In his notice of appeal filed on 13 January 2000, the appellant relies on the ground that the primary judge erred in two respects: first, in not finding that the RRT had made an error of law; and second, “in not adjourning the case so as to obtain a new translation to be made of his statements”.

   The appellant’s claims and evidence before the RRT

9. The appellant was interviewed by an Immigration Inspector on his arrival at Sydney Airport on 23 May 1999. He said that he did not have a passport and that he was a refugee.  He claimed to have left Iran in February of that year and travelled via Pakistan, Thailand and South Korea to Australia.  He told the RRT that he left Iran out of fear for his life.

10. The appellant has given various dates as his date of birth: 18 February 1969, “30 February 1969” [sic] and 18 February 1970.  He said that he was born in Tehran, that his family moved to Bandar-e-Anzali (Anzali Port) on the Caspian Sea when he was six years old and that his family still lived there.

11. The appellant undertook military service in the period 1990-1992.  He claimed that he had suffered psychologically after having been conscripted to the Sepah Pasdaran (Revolutionary Guards), a sector of the armed forces which was considered to represent “the most devout defenders of the Revolution”.  He had argued with an officer that their actions were contrary to the teachings of Islam and as a result he was detained for a month and required to remain in the service for an additional two months. He said that after his discharge he could not enter university and was “denied service in any organisation”.  Since completing his military service in 1992, the appellant has lived in Tehran, at first with his aunt.

12. The appellant claimed that, as from 21 March 1998, he worked in a newspaper office in Tehran. At the hearing before the RRT he described this job as involving “service duties” including banking and mailing.  According to the record of the airport interview, he explained the role in terms of “clerical and journalistic duties”.  In his application for a protection visa he described it as “news reporter”.  At the airport interview, the appellant claimed that he had received threats from “small groups”, “political groups” and the “Government”, after having “published some information”.  However, as noted later he did not make this claim at the RRT hearing.

13. In September 1998, the appellant moved from his aunt’s place and occupied the upper floor of a building at Chahra Lashkar.  His landlord and the landlord’s family occupied the ground floor.  He became friendly with them.

14. In early November 1998 he started to take an interest in the Baha’i faith professed by his landlord.  He said he attended their gatherings and read Baha’i religious material, some of which he had in his room.  At the hearing before the RRT he claimed that he had converted to the Baha’i faith at about this time. 

15. On 8 February 1999 at about 4.00 pm upon returning home, the appellant saw that officials had handcuffed the landlord and his wife and were taking them away.  He telephoned his sister who told him that the authorities were looking for him.  He was told that the Government had found books and materials on the Baha’i faith at his place of residence, that he should leave the country, and that if he were caught he would face capital punishment.

16. He claimed that an agent smuggled him out of Iran to Pakistan on 20 February 1999 for the sum of $US8,000; that he was introduced to another agent in Karachi; that he was taken to Thailand where he remained for two months; and that he travelled via South Korea to Australia. He claimed that if he returned to Iran he would be executed. 

17. The RRT found that the appellant was not a credible witness and stated that he was “evasive and unforthcoming when pressed for details in relation to his account”.  For instance, the RRT noted inconsistencies in relation to his last place of residence in Iran (various addresses were given, including the address of his aunt in Tehran, whereas at the airport he had given his parents’ address in Bandar-e-Anzali).

18. The RRT also noted that in the interview at the airport the appellant had made no mention of his claims regarding the Baha’i household or his allegation that he had become an adherent to the Baha’i faith.  The RRT also noted that in his application for a protection visa he had given his religion as “Muslim (Shiet)”.  The RRT questioned the appellant about the teachings of the Baha’i faith and found that he demonstrated only a limited and superficial understanding of them.

19. The appellant generally accounted for inconsistencies in the various factual details given in the record of his interview at the airport, in his written application for a protection visa and at the RRT hearing, by pointing out that the interpreter on the first two occasions was Afghani and had misinterpreted the appellant’s statements.  He also claimed that at the airport interview he had been fearful that officials of the Iranian Embassy were involved in the interview and that for this reason he had declined to give much information.  He claimed that he had feared deportation if he told “everything at once”.  The RRT considered that “[h]e shifted his ground when trying to explain why he had not told the truth or had not previously given a complete account of his claims”.

20. The RRT did not accept that the appellant had genuinely converted to the Baha’i faith.  Nor did it accept that he had fled Iran because he was accused of having done so or of having proselytised or wanted to proselytise.  It  therefore did not consider that the appellant would have problems as a result of his religion if he were to return to Iran.

21. The RRT questioned the appellant in relation to his journey from Tehran to Australia and found his testimony in this respect also not credible.  The presiding member stated “[i]t took several questions ... to elicit the information with regard to how he in fact claimed to have travelled across the border into Pakistan”.  The RRT did not accept the appellant’s claim that he was in hiding for ten days before he left Iran or that he was smuggled over the border into Pakistan.  It considered that he had fabricated his story of illegal departure in an attempt to strengthen his claim.

22. The RRT examined independent country information and found that the Baha’i community does face difficulties in Iran.  However, it concluded that Iranians who socialised with Baha’i adherents did not face particular problems with the authorities and nor did Iranian Baha’is who did not identify themselves as such but represented themselves as Muslims.  Generally, the RRT found the appellant’s account of the difficulties he had faced implausible.

23. The RRT was prepared to accept that the appellant may have argued with one of his military officers and been detained and subsequently denied the opportunity to enter university.  However, it did not consider that these matters constituted such significant detriments or disadvantages as to amount to persecution.

24. Before the primary judge the appellant reiterated much of what he had said before the RRT by way of explanation as to why he had not stated that he was a member of the Baha’i faith or adhered to the principles of that faith, and for that reason, was in fear of persecution if he were to return to Iran.

25. The learned primary judge thought it not unreasonable for the RRT to have expected a person to have a basic understanding of the principles of a faith to which the person has converted.  His Honour found it open to the RRT to take this factor into account.  His Honour considered that, having had the advantage of seeing the appellant give evidence and having asked him questions in relation to his claimed religious faith, the RRT was entitled not to be satisfied of the genuineness of his claimed faith.

26. With respect to the RRT’s finding that the appellant may have been denied an opportunity to enter university, his Honour was satisfied that the presiding member intended to make firm findings in relation to the matter and that no error was disclosed in the discussion of the question whether that disadvantage amounted to persecution.

27. The appellant asked his Honour to adjourn the hearing to permit a new translation to be made of his statements so that he might point out further significant difficulties with the translation of them.  His Honour did not think this was warranted in the absence of specific instances of any significant alleged mistranslation.

28. The primary judge concluded that no error of law was shown that would have provided a basis for judicial review of the RRT decision.  Accordingly, he dismissed the application for review with costs. 

    Submissions on the present appeal 

29. The appellant, who appears in person as he did before the learned primary judge, has not filed written submissions.  He has, however, made oral submissions before us today and I will refer to these shortly. 

30. The Minister filed written submissions.  In relation to the first ground, he submits that there was nothing in the reasons for judgment of the primary judge to suggest that he overlooked any of the RRT’s reasons or findings or failed to examine properly those reasons or findings and the evidence on which the RRT relied.

31. In relation to the second ground of appeal, the refusal of an adjournment, the respondent submits that there is no error of law in the trial judge’s conclusion that it was open to the RRT to give little weight to the alleged inaccurate translations on the basis that they were not significant. 

32. Before us today, the appellant has made oral submissions and an interpreter has interpreted to the Court a written submission which the appellant had written in his own language, Farsi (Persian).  In short, his submissions invite the Court to embark again upon a consideration of the application on the merits of his application for protection visa.

    My views on the present appeal 

33. In my respectful opinion, the grounds of appeal are not made out. 

34. As to the first ground, I agree with the learned primary judge that the RRT’s conclusion that the appellant was not credible was supportable. Only in exceptional cases will such a conclusion give rise to one of the grounds of review permitted to this Court by subs 476(1) of the Act. No matter how I regard the matter, it seems to me that the appellant does not point to any error of law but invites this Court to conclude that errors of fact were made.

35. In relation to the second ground, which is that the trial judge erred in not adjourning the hearing to obtain a new translation to be obtained of the appellant’s statements, it is appropriate to set out the following passage from the reasons of the RRT:

    “The Applicant said that the interpreter used at the airport interview had been an Afghani interpreter as well and that there were corrections that he wished to make to the record of the airport interview.  He said that he had mentioned that some document had been discovered at his home but the Afghani interpreter had said that they had published some information.  The Applicant said that as he had mentioned in his statement a group of disciplinary forces had raided his home but the interpreter had misinterpreted this as political groups, which was not correct.  In another spot he had said that he had been threatened by the regime and the interpreter had said that he had been threatened by the Government.  Finally he said that in his statement it had mentioned that he had left Iran 12 days after the incident when his landlord had been arrested whereas in fact he had left only 10 days after this incident.”

36. The first three of these alleged mistranslations arise out of the following question and answer which appear in the record of the airport interview:

    “Q. Why did you leave your home country.  The country you were living in?

    A. Because I fear for my life.  Small groups are threatening me and the Government has warned me.  We published some information and we started to receive threats from different political groups and the Government.” (emphasis supplied)

37. It was clearly open to the RRT and the learned primary judge to take the view which they took as to the first three alleged mistranslations arising from this passage. 

38. The fourth matter arose from a written statement which the appellant himself had provided through his adviser.  This was a statement that was translated into English on 2 June 1999.  It stated “I left Iran on 20 February 1998” and the correction sought to be made was that his departure occurred ten days after 8 February 1999, that is, on 18 February rather than 20 February.  I note in passing that the appellant’s own adviser supplied not only that statement but a further one in July 1999 in which the statement of 2 June was reviewed and corrections were made to it, although the matter last mentioned was not raised.

39. It was clearly open to the RRT to take the view that any mistranslations were not significant in the total picture.  In this respect I agree with the reasons for judgment of the learned primary judge who said this:

    “There was some discussion in the reasons as to errors of interpretation by an Afghani interpreter who translated or interpreted the evidence and statements of the applicant.  However, the shortcomings in relation to the translation which were referred to by the applicant do not seem to me to be significant, and it was open to the member to give them little weight in reaching a determination.

    The applicant has submitted before me that I should in effect adjourn the hearing and permit a new translation to be made of his statements in order to enable him to point out further discrepancies of significance, in his view, in the interpretation.”

40. I note that the appellant has not identified any further errors of translation in “his statements”.

41. In my respectful opinion, neither ground of appeal is established and the appeal should be dismissed with costs.

    SPENDER J:  

42. I agree that the appeal should be dismissed with costs.  I agree with the reasons given by Lindgren J. 

43. In essence, the appellant seeks to challenge in this appeal the findings of the Tribunal once again, as well as the exercise by the learned primary judge of the discretion concerning the grant of an adjournment.  It is clear that the appellant misunderstands that, at first instance in this Court and on appeal, the Court is not permitted to engage in mere merits review.  That misunderstanding is reflected in the appellant’s complaint that the trial judge had said that the facts were not before him.  “How then”, the appellant asked, “could he make a decision on the facts?” 

44. In paragraph 9 of the reasons for judgment, the learned primary judge said this:

    “It is no doubt not unusual, particularly in countries where educational standards are not high and where there are strong religious beliefs, to find that many members of a particular religion will not have a detailed understanding of the philosophy behind the religion or its precise details.  However, it is not unreasonable to take the view that one would expect a minimal understanding of basic principles.  This is not a matter on which I can express any view on the merits but it does seem to me that it was open to the member, having regard to the reasons which were given, to reach the conclusion that this was a factor that should be taken into account.”

1. The appellant’s misunderstanding of what the Federal Court can do in relation to a decision of the Refugee Review Tribunal is further reflected in his request that the decision of this Court be delayed so that he can put before this Court a letter of support from the Baha’i community.

2. There is no prohibition on the appellant putting later material on the question of his faith before the Minister under s 48B of the Act. That avenue, however, is not material to the proper disposition of this appeal.

3. The appellant has not demonstrated any error in the reasons for judgment of the learned primary judge and I agree with the orders proposed by Lindgren J.

   MADGWICK J:

4. I agree with the orders proposed and I agree with the reasons given by my brethren.  I would simply add that, in my view, the primary judge was correct on both issues, namely, whether there was error demonstrated before the Tribunal and as to whether there should be an adjournment of proceedings to enable further translations, for the reasons that his Honour gave.

   SPENDER J:

5. The order of the Court is that the appeal be dismissed with costs. 

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Lindgren and Madgwick.

Associate:

Dated:             7 June 2000

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms AF Backman
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	31 May 2000
Date of Judgment:	31 May 2000